Citation Nr: 0400488
Decision Date: 01/08/04 Archive Date: 01/22/04
DOCKET NO. 99-18 337A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUES
1. Entitlement to an increased evaluation for hiatal hernia
with reflux, currently evaluated as 10 percent disabling.
2. Entitlement to an effective date earlier than August 31,
2001 for the award of increased disability compensation for
hiatal hernia with reflux.
3. Entitlement to service connection for depression, claimed
as secondary to service-connected disabilities.
4. Entitlement to an increased evaluation for spermatocele,
left, currently evaluation as 10 percent disabling.
5. Entitlement to service connection for a right testicle
disorder, claimed as secondary to the service-connected left
spermatocele disability.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Christopher P. Kissel, Counsel
INTRODUCTION
The veteran served on active duty from October 1981 to
December 1985.
This case comes to the Board of Veterans' Appeals (the Board)
on appeal from rating decisions issued by the Department of
Veterans Affairs (VA) Regional Office (RO) in Chicago,
Illinois.
Clarification of issues on appeal
The first four issues listed on the first page have been
certified for appeal to the Board. The veteran has, however,
filed a timely notice of disagreement (NOD) as to the denial
of secondary service connection for a right testicle
disorder, which was denied by rating decision in June 2001.
Specifically, it is clear from the veteran's statement dated
July 30, 2001 that he wishes to pursue an appeal of the
denial of this claim. See 38 U.S.C.A. § 7105; 38 C.F.R.
§ 20.201; see also Godfrey v. Brown, 7 Vet. App. 398, 408-410
(1995) [the filing of a NOD initiates the appeal process].
The Board will direct the RO to take further adjudicative
action with regard to this claim, as set forth below. See
also 38 C.F.R. § 19.35 (2002) [a VA Form 8, certification of
appeal, is issued by an RO for administrative purposes only
and does not confer or deprive the Board of jurisdiction of
an issue].
The record shows that other issues were raised by the veteran
and adjudicated by the RO during the pendency of this appeal,
to include service connection for post-traumatic stress
disorder and an increased rating for hemorrhoids. However,
the veteran has not to the Board's knowledge filed a NOD of
disagreement with respect to those claims. Those issues are
accordingly not within the jurisdiction of the Board and
therefore they will not be addressed herein. See 38 U.S.C.A.
§ 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.201 (2002); see
also Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [a NOD
initiates appellate review in the VA administrative
adjudication process].
REMAND
After having reviewed the veteran's VA claims folder, and for
reasons stated below, the Board believes that a remand is
necessary.
Reasons for remand
Additional medical records
The Board believes that certain medical records, not
currently associated with the veteran's VA claims folder, may
be pertinent to the proper adjudication of the veteran's
claims. In December 2002, prior to certification of this
case to the Board, the RO received a VA Form 21-4142
(Authorization and Consent to Release Information to the
Department of Veterans Affairs) in which the veteran detailed
both private and VA sources of treatment for the disorders at
issue on appeal. The veteran indicated that he was seen at
the Marion, Illinois VA Medical Center (VAMC) for depression,
sleeping problems, heartburn, regurgitation of food and
bilateral testicular pain, and at private facilities
identified as Logan Primary Care and Marion Memorial
Hospital. Nowhere in the record is it shown that development
action was taken in response to the veteran's December 2002
Form 21-4142, although medical records from the VAMC as late
as February 2003 have been added to the claims folder.
Medical examinations
The record shows that the veteran was scheduled for a
genitourinary examination in January 2003, but it appears
there was a mix-up in the scheduling of this exam at the
Marion VAMC (originally scheduled at the VAMC in Chicago, but
the veteran has repeatedly stated that the Marion facility is
much closer to his residence).
It does not appear the requested genitourinary examination
was ever rescheduled.
In addition, the record shows that the veteran was scheduled
for a VA mental disorders examination in January 2002, with
specific instructions from the RO to provide a medical
opinion addressing whether any diagnosed depression was due
to the veteran's service-connected disabilities. However,
for reasons unknown, this exam was canceled by the Marion
VAMC. Based on a review of the evidence in the file, the
Board finds that an examination is necessary to make a
decision on this claim. See 38 C.F.R. § 3.159(c)(4).
The record shows that the veteran has had some problems in
the past in connection with appearing for scheduled VA
examinations. Some of these failures to report were clearly
his fault, while, as indicated above, it appears VA in other
instances did not take appropriate steps to correctly set up
scheduled examinations. In any event, the veteran is hereby
advised that his failure to report for any scheduled
examination may result in his claim being denied. See
38 C.F.R. §§ 3.158, 3.655 (2003).
Secondary service connection for right testicle disorder
As noted in the Introduction, the veteran filed a timely NOD
in response to a June 2001 rating decision that denied his
claim of entitlement to service connection on a secondary
basis for a right testicle disorder. Where a claimant has
submitted a timely notice of disagreement with an adverse
decision and the RO did not subsequently issue a statement of
the case addressing the issue, the Board should remand the
issue to the RO for issuance of a statement of the case. See
Manlincon v. West, 12 Vet. App. 238 (1999).
The Veterans Claims Assistance Act of 2000
The RO's VCAA notice letter dated October 2001 did not
specifically notify the veteran of which portion of any
information or evidence necessary to substantiate his claims
would be provided by him and which portion would be provided
by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002) [when VA receives substantially complete application
for benefits, it has an obligation to notify claimant of any
information and medical or lay evidence necessary to
substantiate the claim]; see also Charles v. Principi, 16
Vet. App. 370, 373-374 (2002).
The Board additionally observes that since the issuance of
the Charles decision, the United States Court of Appeals for
Veterans Claims has repeatedly vacated Board decisions where
the VCAA notice sent to the claimant failed to specify who
was responsible for obtaining relevant evidence or
information.
More recent judicial precedent has further addressed the
notification requirements of the VCAA. Specifically, in a
decision promulgated on September 22, 2003, Paralyzed
Veterans of America v. Secretary of Veterans Affairs, No. 02-
7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003), the
United States Court of Appeals for the Federal Circuit
invalidated the 30 day response period contained in 38 C.F.R.
§ 3.159(b)(1) as inconsistent with 38 U.S.C. § 5103(b)(1).
The Federal Circuit found in the PVA case that the 30-day
period provided in § 3.159(b)(1) to respond to a VCCA duty to
notify is misleading and detrimental to claimants whose
claims are prematurely denied short of the statutory one-year
period provided for response. Since this case is being
remanded for additional development, the agency of original
jurisdiction should take this opportunity to inform the
veteran that notwithstanding the information previously
provided, a full year is allowed to respond to a VCAA notice.
Accordingly, this case is REMANDED to the Veterans Benefits
Administration (VBA) for the following action:
1. VBA must review the claims file and
ensure that all notification and
development action required by the VCAA
is completed, including providing the
veteran with written notice of the
evidence, if any, the veteran is expected
to provide in support of the claim on
appeal and the evidence, if any, that VBA
will obtain for him.
2. VBA should contact the VAMC in
Marion, Illinois and request copies of
all medical reports that facility has in
its possession pertaining to treatment
provided to the veteran since February
2003. In addition, VBA should contact
the non-VA health care providers
identified in the veteran in his November
2002 VA Form 21-4142, namely Logan
Primary Care and the Marion Memorial
Hospital. VBA should then obtain copies
of available treatment records and
associate them with the veteran's VA
claims folder.
3. Upon completion of the above
development, if the evidence of record is
not sufficient to render an informed
decision, VBA should schedule the veteran
for appropriate VA compensation
examinations to determine the nature and
extent of impairment caused by his
service-connected hiatal hernia and left
spermatocele disabilities and to
determine the existence, nature and
etiology of the psychiatric disability
for which service connection is being
sought. The veterans VA claims folder
should be provided to the examiners for
review in conjunction with the scheduled
examinations. Detailed reasons and bases
for all diagnoses and opinions reached
should be provided. Reports of the
examinations should be associated with
the veteran's VA claims folder.
4. Thereafter, VBA must readjudicate the
issues on appeal. A supplemental
statement of the case should be prepared
if any benefit sought on appeal remains
denied. The veteran and his
representative should be provided with
the supplemental statement of the case,
and an appropriate period of time should
be allowed for response.
5. VBA should furnish a (supplemental)
statement of the case to the veteran and
his representative addressing the issue
of entitlement to service connection on
a secondary basis for the right testicle
disorder. The veteran should be
afforded appropriate opportunity to
prefect an appeal.
Thereafter, the case should be returned to the Board, if it
is otherwise in order.
The veteran has the right to submit additional evidence and
argument on the matters the Board has remanded. See
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board for
additional development or other appropriate action must be
handled in an expeditious manner. See The Veterans' Benefits
Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108
Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002)
(Historical and Statutory Notes). In addition, VBA's
Adjudication Procedure Manual, M21-1, Part IV, mandates
expeditious handling of all cases that have been remanded by
the Board. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-
38.03.
_________________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).